Tag Archives: Foreign Intelligence Surveillance Act

The Obama administration will introduce legislation to overhaul the National Security Agency’s bulk telephony metadata collection program, senior administration officials told The New York Times.

The proposal would end the agency’s bulk collection program, a systematic dragnet that gathers the telephone records of millions of Americans each day. The Times’ anonymous sources said the records would, rather, stay in the possession of phone companies, which would be required to retain the information for a legally required period of 18 months. The NSA currently holds data for up to five years.

In addition, the legislation, should Congress approve, would allow the NSA to access specific records only through a newly established court order.

The new court order, crafted by Department of Justice and intelligence officials, would require phone companies to provide the US government records “in a technologically compatible data format, including making available, on a continuing basis, data about any new calls placed or received after the order is received,” the Times reported.

The revamped orders would also allow the government to look for related records for callers up to two “hops” away from the number that is being surveilled.

The current authorization for the bulk records collection – Section 215 of the Patriot Act – expires on Friday. The administration’s proposal calls on the Foreign Intelligence Surveillance Act (FISA) court, which approves US surveillance requests, to renew the program as is for at least another 90-day cycle, administration officials said, then the administration’s proposal would later institute new practices.

Section 215 allows the NSA to analyze associations between callers, if possible. The collection program was launched after the attacks of September 11, 2001 by the George W. Bush administration as a secret spying program that eventually received more solid legal footing from the FISA court in 2006. The Justice Department claimed that Section 215 could be interpreted as allowing the NSA to collect domestic call information that is “relevant” to an investigation.

The administration’s proposal would only pertain to telephony data and would not impact other forms of bulk collection under Section 215.

Marc Rotenberg, head of the Electronic Privacy Information Center, told the Times that the administration’s new proposal was a “sensible outcome, given that the 215 program likely exceeded current legal authority and has not proved to be effective.”

President Obama announced in January a desire to reform the NSA’s bulk collection of domestic phone data, though without significantly weakening the agency’s surveillance capabilities. Thus, critics of bulk collection are hesitant to celebrate the proposal just yet.

“We have many questions about the details, but we agree with the administration that the N.S.A.’s bulk collection of call records should end,” said Jameel Jaffer of the American Civil Liberties Union.

“As we’ve argued since the program was disclosed, the government can track suspected terrorists without placing millions of people under permanent surveillance.”

The administration’s proposal would join various bills in Congress that range from applying minor tweaks to the metadata program to those that would end it completely.

One bill crafted by leaders of the House Intelligence Committee calls for the court to issue an “overarching order authorizing the program” while allowing the NSA to ask for specific phone records from companies without judicial approval.

Critics of the Intelligence Committee’s bill say it is a Trojan horse for the NSA to actually expand its surveillance scope.

The bill is “not a ‘fix’ of the phone dragnet at all, except insofar as NSA appears to be bidding to use it to do all the things they want to do with domestic dragnets but haven’t been able to do legally. Rather, it appears to be an attempt to outsource to telecoms some of the things the NSA hasn’t been able to do legally since 2009,”wrote independent journalist Marcy Wheeler.

The administration’s plan, meanwhile, would also come with a provision that defines more clearly whether Section 215 could, in the future, be legitimately interpreted as sanctioning bulk data collection. Section 215 is set to expire next year unless Congress reauthorizes it.

The bulk telephony data collection program was first disclosed in June via classified documents supplied to news outlets by former NSA contractor Edward Snowden. The US government calls the program a useful tool in its anti-terrorism operations, yet has offered few specifics on how the program has helped thwart any attacks.

“There has never been a comprehensive government release…that wove the whole story together – the timeline of authorizing the programs and the gradual transition to (court) oversight,” said Mark Rumold, an attorney representing a civil liberties group suing the NSA. “Everybody knew that happened, but this is the first time I’ve seen the government confirm those twin aspects.”

Clapper also revealed court documents from previous intelligence directors who argued in favor of keeping the program secret in compliance with a federal court order. The U.S. District Court in the Northern District of California ordered the White House to publicly disclose documents on why releasing information would threaten national security.

Earlier this week a federal judge ruled NSA’s collection program unconstitutional, citing little evidence that any terror plots had been thwarted by the program. A presidential advisory panel also proposed 46 changes to NSA practices, including seeking a court order for each NSA search.

The Justice Department and the director of national intelligence’s office did not return phone calls to the AP.

In an unprecedented move for the US legal system, the federal government has notified a suspect in a terrorist case that it is going to use information intercepted through warrantless surveillance as evidence against him.

In a court filing, the US Justice Department informed the legal team of terrorist suspect Jamshid Muhtorov of its plans to use communications obtained without a warrant as evidence against him.

The introduction of such evidence for the first time in a criminal case in the US comes amid the escalating NSA spying scandal and ongoing debate about notifying defendants about existing evidence against them, collected by illegal surveillance.

Uzbeki-born Muhtorov was arrested by the FBI last year for allegedly providing aid to the Uzbek terror group known as Islamic Jihad Union (IJU). He is suspected of engaging NATO and US forces in Afghanistan in 2008. It is alleged that the 35-year-old was heading overseas to fight on behalf of the IJU.

During the course of the investigation which started last March, agents recorded communications between Muhtorov and the administrator of an extremist website that they obtained from the suspect’s two accounts. In collaborating with the group, Muhtorov allegedly used code words, claiming that he was “ready for any task, even with the risk of dying”.

The FBI also has communications data from Muhtorov’s phone lines. In one call it is alleged that the suspect said that the Islamic Jihad Union needed support. The affidavit filed in the case by an FBI agent also said that the person on the other line warned Muhtorov not mention the founder of the book during the conversation. In another call with his daughter last July, Muhtorov told her that he would not see her again “but if she was a good Muslim girl he will see her in heaven,” the affidavit said.

The evidence also suggests that Muhtorov and another suspect Bakhtiyor Jumaev plotted to carry out terrorist acts. The affidavit claims that Islamic Jihad Union opposes the Uzbek government and has been placed on a foreign terrorist organization by the US following attacks on US and Israeli embassies in 2004 in the capital, Tashkent.

Muhtorov, a human rights worker, was arrested on 21 January 2012. If convicted Muhtorov faces up to 15 years in prison.

Earlier this year the US Supreme court has dismissed a case challenging the 2008 expansion of FISA which allows legal authority to warrantless surveillance on American soil. The lawsuit has accused the Department of Justice of avoiding judicial review of its surveillance programs by withholding such evidence.

The Supreme Court justices voted 5-4 that the plaintiffs, namely Amnesty International had no legal ground because there was no proof of the fact of surveillance.

But in Muhtorov’s case the Department of Justice has now officially confirmed the suspect was under warrantless surveillance, clearing the road for a possible legal battle in the US Supreme Court.

“We welcome the government’s belated recognition that it must give notice to criminal defendants who it has monitored under the most sweeping surveillance law ever passed by Congress,” said Patrick Toomey, staff attorney for the American Civil Liberties Union, which represented Amnesty in that case.